Could a different type of EU have avoided the Crimean crisis?

Over on Conservative Home Open Europe's Christopher Howarth wrote the following article:

Firstly, a disclaimer: Russia is 100 per cent responsible for its invasion of the Crimea, just as Germany a hundred years ago was for responsible for invading Belgium. Nothing dilutes these facts. However, just as historians disagree as to whether the First World War could have been avoided, it is legitimate to look at whether a better handling of the Ukraine crisis by the “West” generally – and the EU specifically – could have led to a different conclusion.

We need to understand what Russia wants. It has two aims – safeguarding its Black Sea Fleet base in Sevastopol (for emotional as well as strategic reasons) and maintaining a friendly compliant government in Ukraine willing to keep the border open to Russian trade and people. Under both Timoshenko and Yanukovych, this is exactly what Russia had.

So what has caused the current crisis? Russia’s naval base is on a lease, so for now it is protected, but Russia fears that a pro-western Ukrainian Government, joining NATO and the EU, could jeopardise its operation. These fears maybe overdone, but a more potentially serious threat comes to Russia’s trade in the form of Ukraine’s potential EU membership.

The EU is a customs union, which means that its external trade is decided collectively around an external customs wall – the crucial difference between it and a Free Trade area. But as well as being a customs union, the EU has become a political construction with a defence element including a mutual defence guarantee mirroring that of NATO – inserted via the Lisbon Treaty. So from a Russian point of view the EU no longer an economic club, but more a political and defence power block synonymous with NATO. Indeed, Russia is so impressed by the EU as a power block it has sought to imitate it in its own Eurasian Customs Union – which it had hoped Ukraine would join.

EU and candidates and Eurasia and its candidates

Looked at from the inside, the EU eliminates borders, creating an area free of customs, visas and – within Schengen – all border controls. This however comes at a price, and the price is often paid by the EU’s neighbours. We have seen this before in Moldova. Prior to Romanian EU accession, Moldovans could freely travel to Romania but after Romania joined this came to an end – Moldova was on the wrong side of the EU’s external frontier. Unsurprisingly, Russia would not wish for the same on its border with Ukraine.

Ukraine is therefore caught between two opposing power blocks. For many years, Ukraine managed to balance the competing interests and different aspirations of both its Russian and Ukrainian speakers. From Moscow’s point of view, it was working: Ukraine had leaders who accepted Russian largess in exchange for influence, renewed their lease on Sevastopol, kept trade moving and allowed Russians and Ukrainians to travel visa free – something that Ukrainian EU membership could put in danger.

It should therefore have been possible to predict that Russia would react badly to further moves by Ukraine towards the EU. Despite this, no effort seems to have been made either to dampen Russian influence by shoring up Ukraine’s finances, thus enabling them to make the jump, or alternatively to mollify and reassure Russia. We were left to watch as an EU deal with no immediate cash offering was outbid by hard Russian cash with a bankrupt Ukrainian President taking his country swerving to the east. The reaction in western Ukraine was predictable, as was the Russian reaction when protesters hostile to the Russia seemed to take control.

Even at that point, not all was lost for Russia. Ruslan Pukov, a graduate of the Russian Ministry of Foreign Affairs, points out in the New York Times that Tymoshenko was originally Russia’s favoured candidate, that her re-election in an early poll would for Russia have been a reasonable outcome – and for that pro-Russian electors from Crimea within a united Ukraine would help. Speeding up the signing of the EU’s Ukrainian Association Agreement and the pronouncements of some EU foreign ministers about Ukraine’s EU membership potential (however genuine or not) have, however, fanned the fears of those in Russia who feel that Ukraine is on route to being “lost” into an opposing and not necessarily friendly power block. Russia’s preferred option would be a pro-Russian Ukraine. If Russia annexes Crimea, it may look like a Russian victory but in reality would be an admittance of a wider failure.

It is for Ukraine to decide whether it should join the EU. If that is their settled wish, we should not shut the door just to appease Russian sensibilities. Nor should we confuse justifiable anger at corruption (often linked to Russia) with a genuine love of EU integration shared by all Ukrainians. For now, we should help Ukraine improve its standard of government, help it strengthen its economic independence (one way could be through shale gas development) and do what we can, through sanctions, to dissuade Russian aggression. But we should be aware that the makeup of the EU, the nature of its integration and enlargement, combined with ‘all or nothing’ decisions being forced on the Ukraine by both the EU and Russia, have polarised Ukrainian politics and are having consequences.

In the longer term, it is time for the EU to rethink how it deals with its neighbouring states. Those that have chosen not to join the EU or border the EU but will never join deserve better than the imposition of a hard frontier dividing them from historic partners. If the price of EU integration within is division without, someone will pay the price. If the EU was not so rigid, did not require conformity with everything and offered a genuine partnership status that could work for Ukraine without antagonising its other neighbours, it might be a form of membership that others could take up – including, someday, even Russia.

Ukraine: To the victor the spoils? What will Russia and the EU do next?

Ukraine’s future is in the balance. It could move closer towards the EU, Russia or both at the same time. It could remain a unified state, split in two or conceivably be invaded by Russia. Here are some of the scenarios which we've ranked according to their probability.

Closer ties with the EU - Ukraine was due to sign an association agreement with the EU, the cancellation of which caused the crisis in the first place. With a new government and Ukraine on the brink of financial default Ukraine will be looking for EU help and finance. Full EU membership, and certainly NATO membership, will remain off the table but the original trade agreement looks likely to be signed.
 

Partial reconciliation with Russia - It is highly unlikely that the new government will wish to move closer to Russia, and will not wish to join Russia’s Eurasian Customs Union (itself incompatible with the EU deal). That said Ukraine cannot ignore Russia - it is dependent on it for its energy, it has substantial debts with Moscow and it is its largest trading. There is also the question of the large Russian minority and Russian speaking minority that would strongly oppose Ukraine distancing itself from its Eastern neighbour. Much depends on the pragmatism of the new Ukrainian government, the Russians (President Putin in particular) and the EU - ultimately it is in the interests of all sides to ensure stable political and economic relations. 

Remain a unified state - Although the ethnic/linguistic divides are stark (see below) the split is not as straightforward as it looks. There are ethnic Russians (in the Crimea), ethnic Ukrainians who speak Russian as well as other minorities. The revolution was undoubtedly triggered by Yanukovich's decision to opt for closer ties with Russia and not the EU but widespread discontent fuelled by corruption and bad governance were crucial in bringing things to a head. As long as the new government is inclusive, remains on good terms with Russia and avoids antagonising the Russian minority too much the state should hold together.


Divided - but how?

Disintegration - If the new Ukrainian Government - backed with financial support from the EU - decides to ignore the concerns of Russian speakers in the East it risks provoking an insurrection in these regions. The ex-President is still at large and could be a focus for areas wary of coming under the control of the protest movement that they did not support. The most dangerous flash point is in the Crimea, which only joined Ukraine in a transfer organised by the Ukrainian Soviet supremo Khrushchev. Crimean Secession seems unlikely for now but it’s worth remembering the Russian Black Sea fleet is based here.

Invasion by Russia - There is a danger that if Russia feels frozen out of the Ukraine all together it could act as it did in Georgia in 2008 and seek to intervene in support of a proxy interest. In this case, if the new government were to threaten Russian interests or ethnic Russians in the Crimea, it could prove a pretext for Russian intervention. Russia could back secessionists or act in its own interest and annex the Crimea. Russia would pay a heavy price (Ukrainian military action and western retaliation on its fragile economy) so for as long as its interests are secure this remains an extreme scenario.

The stakes are high for the European Union. Ukraine has many links to EU states – parts of its territory have been part of Austria, Hungary, Czechoslovakia, Poland, Romania and further back Lithuania – but the EU should be careful. Russia has an equal claim to close relations with Ukraine and any mutually exclusive deal with the EU will raise tensions. The new government and the EU should of course establish good relations, but Russia needs to be a part of the process and so too does the large Russian speaking population in Ukraine – the EU risks confrontation if they are not included in the process.

If EU law is followed, Scotland will join the EU just before Serbia

Our Director Mats Persson writes on his Telegraph blog:

The UK must be the first country, with the forthcoming Scottish and EU referenda, to simultaneously have an intense political debate about the difficulty or otherwise of both joining and leaving the EU. Traditional assumptions are being bent in all sorts of directions, with senior UK politicians approvingly citing EU Commission President Jose Manuel Barroso for suggesting it would be “very difficult, if not impossible” for an independent Scotland to join the EU.

Like Catalonia in Spain, rightly or wrongly, Alex Salmond’s case rests in part on the argument that "if we leave one club, we can safely join another." It’s an insurance policy against the uncertainty which is a such a killer in any referendum to change the status quo. So is Barroso right?

Iceland’s accession talks with the EU – which were terminated since the Icelanders turned cold on the idea – would, in purely legal terms, come close to those of Scotland. Iceland is part of the European Economic Area, and therefore almost an EU member. Scotland has been an EU member for 40 years. Both would face tricky negotiations, like protecting their fishing industries.

There are basically six steps (by my rough categorisation). Salmond’s biggest problem is that for half of these, each of the 28 EU states, including rUK and Spain, has a veto:

Step 1 – Scotland applies to join the EU: Under EU law, it would have to be an independent country to apply.

Step 2 – The European Commission “screens” Scottish law to see if the country is compatible with EU membership – this won’t be an issue.

Step 3 – EU governments decide whether to approve Scotland’s EU application. All EU states have a veto.

Step 4 – The EU and Scotland begin negotiations over individual EU policy areas. There are now 35 so-called “accession chapters” covering everything from the euro to employment law to the EU budget. Each country has a veto over the decision to both open and then to close every single chapter – ask Turkey how easy that has proven (read: Cyprus and France). It’s in these talks that Salmond would need to deliver on his pledge to get an opt-out from the euro, as well as replicating the UK’s special deals on the EU budget, crime and immigration and passport controls.

Step 5 – When the 35th chapter is agreed, the Accession Treaty with the Scottish terms of entry is drafted.

Step 6 – This Treaty must then be ratified by the Parliaments of each EU country and the European Parliament. If one says no, the deal falls.

Iceland officially applied to the EU in June 2009. In 2013, when the bid was dropped, it had completed about a third of the negotiations. So if the letter of the law is followed, Scotland might join the EU just before Serbia, several years from now.

However, in the EU, political expediency tends to trump the letter of the law. I suspect that, given the stakes, if the Scots do pull the trigger, the EU will engage in the kind of legal acrobatics that it’s proven so good at in order to fast-track an independent Scotland to membership, with or without a euro opt-out (though, as Andrew Lilico has pointed out, there might be a range of practical currency issues).

No matter what, it would be a mess. In truth, we have little idea what’s going to happen if Scotland goes independent. And I suspect that in itself undermines Salmond’s case.

This could be huge: Germany’s fledgling coalition considers its own “referendum lock”

As we point out in today’s press summary, the German media is abuzz with reports that a proposal has been tabled in the on-going Grand Coalition talks between the CDU/CSU and SPD on encouraging more "direct democracy" via national referenda, including on the transfer of new powers to the EU. Details remain unclear, but this looks similar to the UK’s own “referendum lock,” which provides for automatic public votes in many (but not all) cases of powers being transferred from Westminster to Brussels. 

Süddeutsche Zeitung reports that a CDU/CSU and SPD working group (lead by the CSU’s incumbent Interior Minister Hans-Peter Friedrich and the SPD’s Thomas Oppermann), has prepared a draft paper, which states that people should "be directly consulted on European policy decisions of special importance” and that this should apply in particular to:

"the accession of new Member States, important competences being transferred to Brussels or Germany’s financial contributions at the EU level - for this, we want to provide nationwide referendums."

The CSU campaigned for the introduction of referenda on important European policy decisions during the election, while the SPD has, in principle, been in favour of direct democracy for some time. While the CDU is somewhat more sceptical, there is still support for this idea within the party's own ranks. Schäuble last year floated the idea of a referendum on a new constitution.

In other word, this could mean referenda on:

• Significant transfers of power from Germany to the EU;
• Future EU enlargements;
• More financial contributions which, presumably, would include any form of transfer union.

If this becomes part of the Coalition agreement it would be hugely significant. Germany, a country historically allergic to referenda, will have one of the strictest regimes with respect to public EU-related votes in Europe. More to the point, as revealed by our own polling, it’s very hard to see how it would be possible to get, say, fiscal transfers voted through by the public (though even without the commitment, changing the German Constitution could require a referendum as per Schäuble's suggestion). Significant transfers of powers could also be blocked by public opposition.

The big difference between this and the UK’s referendum lock is that the German one would also apply to future enlargements. That would be a de facto massive block on a future Turkish accession, for example.

Still far from certain the idea will materialise in the end but it's definitely one to watch.

Not what London or Madrid want to hear

 

According to the Scotsman, Professor Dr Roland Vaubel, who is an adviser to Germany’s economics ministry, has written the following for the journal Economic Affairs:

The opinion of the European Union institutions that Catalonia and Scotland, after seceding, would have to reapply for EU membership has no basis in the European treaties.

Nor does the UN Charter envisage dispositions with regard to secession.

The treaties are also consistent with automatic succession of both the seceding state and the rump state.

 We don't have to point out that this isn't the view in London or Madrid.

Scottish independence and EU accession: tricky to pull off in one manoeuvre?

The SNP Scottish Government has today released its 16 page plan for independence in which it envisages an independent Scotland within the EU. The document does show they have attempted to address earlier criticisms and grapple with the myriad of legal questions Scottish independence throws up, but troubling issues of EU law remain. So what are the potential problems?

The SNP's new plan is based on its belief that "negotiations will be required in advance of independence with the European Union to agree terms of an independent Scotland's continuing membership."

However this would seem to contravene EU law. The EU has a clear process for EU accessions set out in Article 49 of the Treaties as follows:

"Any European State which respects the values referred to in Article 2 and is committed to promoting them may apply to become a member of the Union. The European Parliament and national Parliaments shall be notified of this application. The applicant State shall address its application to the Council, which shall act unanimously after consulting the Commission and after receiving the consent of the European Parliament, which shall act by a majority of its component members. The conditions of eligibility agreed upon by the European Council shall be taken into account."

 

So to apply to be an EU state you must firstly be a state, (i.e. not a pre-independent state) and that, once an application is received by the European Council, all EU states would have to agree to membership. There seems to be little room for ambiguity and is helpfully explained on the EU's own website here.

And if this was not enough, the EU, under Article 4, has a responsibility to "respect the equality of Member States before the Treaties as well as their national identities...including ensuring the territorial integrity of the State." It is difficult to see how negotiating with Scotland pre-independence would conform with that duty. Something Spain would probably point out even if the UK did not.

Even if informal negotiations were opened, could the EU conclude any of the negotiating chapters with a non candidate non state (probably not), could Scotland prove it has the capability to live up to its EU responsibilities prior to independence (again probably not) and how long would the negotiations take - probably years.

But this comes to the biggest problem for Scotland. They would need to get all 27 states' approval. Unfortunately for Scotland some states have a strong principled opposition to succession. Spain, Romania, Cyprus and Greece (and the EU) for instance still do not recognise Kosovan independence. Scotland's potential case is obviously very different, being based on consent, but the principled opposition, from other member states, could be the same. There are also unexpected bilateral issues that any EU state (apart from the UK) may wish to bring up, fish is perhaps the obvious one (and troubled Norway's accession negotiations) but for the sake of argument the sovereignty of Rockall could be another. It is difficult to tell -  Croatia's EU bid was held up for years by a dispute over maritime access with Slovenia.

And that is even before Scotland raises the question of opt-outs to the euro, Schengen, fish and issues surrounding the UK rebate, budget and the number of MEPs it might want...

Of the 27 states that need to agree a number are wary of breakaway regions:

Scotland and the EU: The borderline issue

Not that we ever intended to wade into this debate, but how various separatist/independence discussions interact with the EU treaties has always fascinated us. 

Which is why in January lastyear we wrote a piece entitled "Would EU law introduce border controls with Scotland?", in which we pointed out that an independent Scotland would have to apply for EU membership and that if it did so it would not have the benefit of the UK's opt-outs from the Euro or Schengen, the implication of the latter being possible border controls. 

Open Europe 11 January 2012:

The implications of this seem to have been picked up by the bright sparks in the FCO who briefed the newspapers accordingly:

"The potential side-effects of Scotland breaking away are outlined in a Foreign Office memo leaked to The Mail on Sunday"

Daily Mail 6 February 2012: 

The problems Scotland would have staying within the EU did not go unnoticed in Spain where Catalonian independence was begining to bubble. We wrote about it in Spain here and here.

By now the cat was fully out of the bag - a Sunday Times article came to an obvious conclusion:

The rest as they say is Scottish history...

 



With a final confirmation coming from the Commission on 6 December 2012: